Shareholders retain the right to requisition a meeting under Section 145 of the Companies Act, regardless of conflicting provisions in Articles of Association, ensuring adherence to statutory protections.

Gopal Sri Ram JCA (delivering judgment of the court):

The facts relevant to this appeal are not in dispute. And they are as follows. There are two appellants before us. Both are shareholders of the respondent (a public listed company) holding 19.745%. On 27 December 2007, acting under s 145 of the Companies Act 1965 (‘the Act’) they issued a requisitionists’ notice to the respondent. The purpose of the meeting was to remove the directors of the respondent and to appoint others in their place. The meeting was to be held on 26 January 2008. It was to be held at a venue in Penang. However, on 16 January 2008, the respondent took out an originating summons seeking declaratory relief which in essence impugned the validity of the requisition on a number of grounds. An application to restrain the meeting was also made within the summons but was not pursued as both sides agreed to have the summons taken on its merits. At the conclusion of arguments on 25 January 2008, the High Court at Shah Alam found for the respondent and granted the declarations sought. The present appeal is directed against that decision.

When the appeal was called on for hearing, counsel for the respondent took objection to it proceeding as it was academic. After hearing argument, [2008] 3 MLJ 653 at 659 we overruled the preliminary objection and directed the appeal to proceed. The reasons for our decision are as follows.

According to the respondent company, the date of the meeting which was the subject matter of the summons in the court below had passed. There was therefore no live issue before us. It would have been different if the appellant had not agreed to have the summons disposed off on its merits and had instead insisted on the respondent pursuing its application for an interlocutory injunction. In the circumstances, the appellants must now go back and issue a fresh requisition for a meeting as the earlier requisition is no longer extant. A number of authorities were cited in support of the proposition that a court will not adjudicate upon an appeal which had become academic. We do not think that any useful purpose will be served by a discussion of these. Suffice to say that the test to be applied in deciding the point is that laid down by Viscount Simon in his speech in Sun Life Assurance Company of Canada v Jervis [1944] AC 111Sun Life has been applied by our courts on a number of occasions, and most recently by the Federal Court in Metramac Corp Sdn Bhd v Fawziah Holdings Sdn Bhd 2006 MarsdenLR 1003

In the present instance, the High Court held, inter alia, that the appellants had by reason of art 55 of the respondent’s articles of association (to which we will refer at length later in this judgment) contracted out of s 145 of the Act and were therefore not entitled to rely on that section to requisition a meeting. If the High Court is right, the appellants are forever barred from requisitioning a meeting under s 145 of the Act. The parties before us are therefore entitled to know for the future whether that is truly the case. This in our judgment is a live issue because a decision on it will make a difference to the parties to this appeal by affecting their respective legal position. It is not a mere academic exercise. With that we now turn to the merits of the appeal.

The first issue to be determined in this appeal is whether the appellants are barred from requisitioning a meeting under s 145 of the Act. That section provides as follows:

(1)Two or more members holding not less than one-tenth of the issued share capital or, if the company has not a share capital, not less than [2008] 3 MLJ 653 at 660 five per centum in number of the members of the company or such lesser number as is provided by the articles may call a meeting of the company.

(2)A meeting of a company or of a class of members, other than a meeting for the passing of a special resolution, shall be called by notice in writing of not less than fourteen days or such longer period as is provid